11
and specific right violated or threatened by unlawful or abusive actions by public agents
[…],” which is characterized by the protection of rights other than freedom of movement
that, consequently, “are not protected by habeas corpus.” In the opinion of the said expert
witness, “the mandado de segurança can be filed in cases of requests for […] telephone
interceptions when the right to freedom of movement of the individual [subject of this
measure] is not directly affected.” The Court observes that the individuals whose
conversations were intervened and recorded enjoyed freedom of movement and that,
furthermore, this right was not threatened directly by a coercive measure against their
personal liberty during the course of the telephone interception or subsequently. Therefore,
taking into account that the right to freedom of movement was not being considered
directly in this case, the appropriate remedy for the presumed victims’ claim was not
habeas corpus, but rather the mandado de segurança.
37.
The Court observes that, when the alleged victims filed the mandado de segurança,
on October 5, 1999,23 the telephone interceptions had indeed ceased and the dissemination
of the recorded tapes taken place (infra paras. 97 and 94, respectively). Given the
extinction of the mandado de segurança because the purpose had been eliminated, and the
denial of the embargos de declaração, the State indicated that the representatives of the
alleged victims should have filed other judicial remedies, such as a recurso ordinário
constitucional or an ordinary hearing. These legal actions could possibly have resulted in
another examination of the request for destruction of the recorded tapes by other courts.
38.
The Court considers that the remedies that must be exhausted are those that are
appropriate for the specific situation of the alleged human rights violations: in this case the
interception and recording of telephone conversations and their dissemination. The Court
understands that the destruction of the tapes containing the recordings would not
determine the ceasing or the reparation of the violations claimed by the alleged victims.
Indeed, the filing of a recurso ordinário constitucional or an ordinary hearing in order to
obtain the destruction of the tapes of the recorded conversations could not repair the
interception and dissemination that had already taken place, although it could be an
appropriate remedy to prevent further dissemination and prevent possible human rights
violations in the future. Hence, once the mandado de segurança was exhausted, it was
unnecessary to file other legal mechanisms that would not have been intended to halt or
repair the interception, recording and dissemination of telephone conversations that had
already occurred. Based on the foregoing, the Court rejects this preliminary objection.
C.2)
Criminal proceedings and the “fourth instance formula”
39.
The State claimed that the alleged victims denounced the facts before the Public
Prosecutor’s Office, by means of a representação criminal against the public officials
supposedly involved in the interception, recording and dissemination of the telephone
conversations. The Court of Justice decided to close this investigation with regard to the
Military Police and Judge Elizabeth Khater, and ordered the criminal action to proceed only
against the Secretary of Public Security of the state of Paraná at the time, Cândido Martins,
for the dissemination of the recorded tapes. This public official was acquitted on appeal. The
State added that “the criminal action was duly opened and heard, in accordance with due
process of law and within a normal and reasonable time (slightly more than four years).” It
stressed that the criminal action had concluded when the Commission examined
admissibility and that, in itself, precluded admission of the petition. The Commission could
only have justified its intervention if it had considered that the criminal action had not been
processed in accordance with due process of law; that the decision had been delivered in a
way which was contrary to the law or to the American Convention, or that an unjustified
23
Cf. Record of the registration and opening of mandado de segurança No. 83.486-6 procedures (file of
attachments to the pleadings and motions brief, attachment 2, folio 1007).